Is Theresa May facing even more trouble in the House of Lords?

Amid all the attention on the House of Commons in the days, weeks and months ahead as the Government seeks to ram through its plans for Brexit as a minority Government, the Salisbury Convention in the House of Lords is likely also to be a key factor as legislation passed through Parliament.

The convention, which emerged during the period of the 1945-51 Labour Government when the then Leader of the Conservative Opposition in the House of Lords, the fifth Marquess of Salisbury agreed with the then Labour Leader of the Lords, Viscount Addison, that the Upper House would not try to vote down at either second or third reading stage any Government Bill mentioned in an election manifesto.

When Theresa May called the election she was confident of a majority, believing that the convention would enable easy passage of her Brexit legislation through a House of Lords that had caused trouble for the Government in the past. The question now however is whether, with the Government having failed to gain an outright majority in the Commons, the Salisbury convention still stands.

In 2011, speaking about the application of the convention under the coalition government, the then Minister for Political and Constitutional Reform, Mark Harper who between 2015 and 2016 served as the Government Chief Whip, concluded:

“With the advent of a coalition Government…the Salisbury-Addison convention does not operate in the same way, if at all.”

What then of a hung parliament? Writing on his blog, Mark Elliot, Professor of Public Law at the University of Cambridge, and legal adviser to the House of Lords Select Committee on the Constitution notes:

“The convention, in effect, acknowledges that Bills implementing manifesto commitments enjoy democratic credentials over and above Bills that are merely endorsed by the House of Commons — because manifesto Bills have a form of democratic legitimacy that can be traced back not just to the elected chamber but to the electorate itself.”

He continues however:

“In a hung Parliament, there will, of course, be Bills that implement the manifesto commitments of the governing party. But are such manifesto commitments relevant for the purpose of the Salisbury convention? If the democratic principle underpinning the convention is understood in the way set out above, then the answer, at least in relation to a minority (as distinct from a coalition) government, must be ‘no’.”

He goes on to say:

“Bills implementing the manifesto commitments of the Conservative Party fall outside the Salisbury convention in the present Parliament because, by definition, the minority government’s manifesto failed to secure majority approval. But what if the Conservatives and the DUP form a formal coalition, meaning that the (coalition) government will then have a majority in the House of Commons? The Salisbury convention, at least for the most part, would remain irrelevant, because the respective manifesto commitments of the Conservative Party and the DUP would lack majority support as expressed via the electoral system. The only potential exception would relate to Bills implementing commitments contained — in sufficiently similar terms — in both parties’ manifestos. Such commitments could make a claim to majority support in the relevant sense, and could therefore engage the Salisbury convention.

Elliot then suggests that the Salisbury convention could apply to commitments that appear in the manifestos of two or more parties, gaining total support that commands more than half the seats in the House of Commons.

The issue is a complex one, and could lead to even more fraught relations between the government and the Lords in the months ahead.

Ed Jacobs is a contributing editor at Left Foot Forward

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